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Birth-record fix for gays falls to lower court, Arkansas Supreme Court rules

Find way to get names on certificates despite illegal law, state justices tell judge by John Moritz | October 20, 2017 at 4:30 a.m.
Arkansas Attorney General Leslie Rutledge speaks to media at Trump Tower in this 2016 file photo.

Arkansas' top judges ordered a lower court on Thursday to come up with a way to accommodate same-sex parents under the state's birth certificate law, which was ruled unconstitutional by the U.S. Supreme Court.

An attorney for two same-sex couples, who had taken their case to the nation's highest court, said she counted Thursday's split decision by the Arkansas Supreme Court as a win for her clients and others who have argued that the state's refusal to print birth certificates that included the names of both same-sex parents was illegal.

The Arkansas Supreme Court ruled last December that same-sex couples had no right to appear together on their children's birth certificates. But in June, the U.S. justices -- ruling on the one-year anniversary of their decision in Obergefell v. Hodges, which legalized gay marriage across the United States -- said such a right did exist and that Arkansas law violated it.

The U.S. Supreme Court remanded the case to Arkansas' Supreme Court for "further proceedings." In its decision Thursday, the Arkansas court reversed its earlier ruling and sent the case down to Pulaski County Circuit Court, with instructions to find a remedy that treated same-sex and heterosexual couples equally.

"This is exactly what we wanted from the very beginning," said the plaintiff couples' attorney, Cheryl Kathleen Smith Maples of Little Rock.

State attorneys had argued before the state high court that the discrepancy between how gay and heterosexual couples were treated when seeking birth certificates could be remedied by a gender-neutral reading of a different law that deals specifically with artificial insemination.

But the majority, in an opinion written by Justice Robin Wynne, rejected that argument, writing that the U.S. court had made clear that the general law regarding birth certificates was in need of remedy.

Indeed, none of the Arkansas justices challenged the ruling by the nation's highest court that the birth certificate law was unconstitutional. Their only disagreement was about who should fix it.

Three justices who dissented from Thursday's majority questioned why the state's high court was leaving a final decision up to a lower court. They also argued it was up to the Legislature, in the end, to fix the law.

A concurring opinion by one of the four judges in the majority added that he would have instructed the Circuit Court in Pulaski County to hold further proceedings. The majority opinion by Wynne simply stated that the lower court should remedy the law without rewriting it, as the opinion said Circuit Judge Tim Fox had done in striking down broad sections of the law in 2015.

It was Fox's ruling that was overturned last year by the state Supreme Court, which Thursday sent the case back to his court. The high court's ruling -- with majority, concurring and dissenting opinions -- was just five pages.

"The birth-certificate law must be addressed, but we cannot simply affirm the circuit court's previous order, which impermissibly rewrote the statutory scheme," Wynne wrote for the majority.

A spokesman for state Attorney General Leslie Rutledge said in a statement Thursday that Rutledge disagreed with "much" of the ruling but not with the limits it placed on the lower court to rewrite law.

"On remand, Attorney General Rutledge will work to ensure today's decision is properly implemented with as minimal intrusion as possible on the powers of the legislative branch," spokesman Judd Deere wrote in a statement.

Shortly after the U.S. Supreme Court handed down its June ruling, the Arkansas Department of Health began issuing amended birth certificates to married same-sex couples who had conceived children through artificial insemination. Those certificates named both parents.

The Health Department at the time said it would have to await further instruction from the courts, and an attorney for the agency said nothing has changed as of Thursday.

In the meantime, Maples, the attorney for the couples suing the state, said several same-sex couples who conceived through other means have told her they have been unable to get birth certificates with both of their names printed.

"They have been rejecting couples that did not go through a doctor," Maples said. "There are ways to get pregnant that do not involve a doctor that don't cost a lot of money."

Because the case working its way through the courts involved two lesbian couples who conceived through artificial insemination, Maples said, it was unclear how the ruling would affect gay married men who conceive children through a surrogate mother, or unmarried same-sex couples. Birth certificates issued to parents who conceive through artificial means are governed by a different law, Arkansas Code Annotated 9-10-201, from the state's general birth certificate statute, 20-18-401.

The lawsuit challenging the general birth certificate statute bears the title Marisa N. Pavan, et al. v. Nathaniel Smith. Pavan, along with her wife Terrah, sued the state after the Department of Health refused to have Marisa Pavan's name placed on their daughter's birth certificate. Smith is the Health Department director.

Under Arkansas' general birth certificate statutes, the husband of a pregnant woman is legally assumed to be the father of her child -- unless a court or affidavit states otherwise -- and his name is automatically printed on the child's birth certificate. Same-sex parents are not given the same presumption.

Robert Brech, an attorney for the Health Department, said both same-sex couples and heterosexual couples who conceive using surrogacy have to go through the same process of getting a court order to have the name of the nonbiological parent printed on their child's birth certificate.

A Section on 10/20/2017

Print Headline: Birth-record fix for gays falls to lower court


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